TaxTMI 
TaxTMI 
2018 (9) TMI 1911
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....139 of 2005 dated 25-1-2005 [2005 (184) E.L.T. 61 (Tri.-Chennai)]. 2. The appeals have been admitted on 26-7-2005 on the following substantial questions of law :- "(i) Whether the Tribunal is right in holding that as per Notification 1/95, 100% EOUs can procure their requirements only from the factory of manufacture of such goods and not from other assessees, in whose hands, the goods are deemed to be manufactured as per the relevant provisions of law ? (ii) Whether the Tribunal is right in holding that at the time of clearance of bought out goods, upon which, Modvat/Cenvat credit has been availed, the manufacturer is expected to pay duty of excise once again even though the goods are supplied to 100%....
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....n specified in the notification having not been complied with, the benefit of Notification No. 1/95-C.E., dated 4-1-1995 was not available for the goods cleared by the assessee. Accordingly, it held that the assessee was liable to pay duty. 5. One more contention, which was considered by the Tribunal, was as to whether the duty payable by the assessee would be equivalent to the amount of Cenvat credit initially taken by them. The Tribunal pointed out that the Proviso to Rule 57F(1) of the Central Excise Rules (for brevity, the Rules) clearly explained the rationale for creating a legal fiction by providing that duty of excise payable at the time of removal for home consumption should not be less than the amount of credit that had been....
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....tronics Ltd. [reported 2014 (309) E.L.T. 479]. 9. The decision in the case of Solectron Centum Electronics Ltd., was rendered by the Division Bench of the High Court of Karnataka on an order of remand passed by the Hon'ble Supreme Court directing it to take note of the decision of the Larger Bench of the Tribunal in the case of Lakshmi Automatic Loom Works Ltd. v. CCE, Trichy [reported in 2008 (232) E.L.T. 428 (Tri.-LB)]. 10. Therefore, it is submitted that the legal position having been held in favour of the assessee in the aforementioned decision namely Solectron Centum Electronics Ltd., the matter may be remanded to the Tribunal for a fresh consideration by taking note of the legal position as pointed out by the High Court of....
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....rnataka. 14. Mr. A.P. Srinivas, Learned Senior Standing Counsel is right in his submission that there is a small factual difference in the case on hand with that of the case before the High Court of Karnataka in the case of Solectron Centum Electronics Ltd., wherein removal of used capital goods was done. 15. However, in our considered view, this may not be very material at the stage of the matter, as we have to decide as to what course of action should be taken in the appeal. Useful reference can be made to the relevant portions of the decision in the case of Solectron Centum Electronics Ltd., rendered by the High Court of Karnataka, which read thus : "The argument is that the assessee is entitled to the said benefit only if ....
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.... Insofar as the inputs are concerned, it is not in dispute that the assessee while purchasing the said goods for its DTA unit has paid duty. It is only when those inputs as such were removed to the EHTP unit, the CENVAT credit availed was reversed. It is because, if the assessee had purchased those inputs for its EHTP unit by virtue of aforesaid Notification, there was no duty payable, as the said inputs were removed with the previous permission of the Department as reflected in CT-3. There was no liability to pay the duty and already CENVAT credit had been taken, it was reversed under protest and therefore, they were entitled to the refund of the said amount. That question is also answered in favour of the assessee and against the Revenue....